JASA Media Release
Justice Alliance of South Africa
1 Ruskin Road, Bergvliet, Cape Town  7945

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Judge takes just 15 minutes to rule on JASA's case against the State asking for Compensation for Firearms.

After 9 years of delay since the Firearms Control Act 2000 was passed, the deputy Judge President took barely 15 minutes to hand down a draconian order against the Minister of Police condemning the action of his predecessor as "unlawful and inconsistent with the Constitution."

Deputy Judge President Traverso, in the Cape High Court, this morning, Monday 31st August, peremptorily dismissed an application for a postponement by the State, and directed the Minister to provide guidelines as required by the Act within 90 days, and then report back personally to the court by affidvait.

The State were (sic) ordered to pay JASA's costs of the whole action including the costs of 2 counsel.

Peter Hodes SC and Anton Katz represented JASA and False Bay Gun Club. The State was represented by Kosie Olivier,SC.

The Court ORDER reads as follows:

1. It is declared that the failure to establish guidelines as contemplated by section 137(5) of the Firearms Control Act No 60 of 2000 ("the Firearms Control Act") is unlawful and inconsistent with the Constitution;

2. The Minister of Police is ordered to establish guidelines as contemplated by section 137(5) of the Firearms Control Act within 90 days of this order and to inform this Court by way of an affidavit by the Minister within 120 days of this order that he has done so; and

3. The Minister of Police is to pay the Applicants' costs of suit, which costs are to include the costs attendant upon the employment of two counsel.

Background:

JASA filed papers in the Cape High Court seeking declarations that the refusal to pay compensation to persons who surrender firearms as required by the Firearms Control Act, 2000 offends against the Constitution.

For over 4 years since the relevant legislation came into force the Minister and National Police Commissioner (Registrar of Firearms) have refused to comply with section 137 of the Act. JASA alleges in its affidavit that the State has acted 'unreasonably and arbitrarily, and without procedural fairness, in that most applications are rejected out of hand, ignored or simply filed away', contrary to section 33 of the Constitution which requires just administrative action for all persons.

Both individuals and dealers have suffered financial hardship; in one of several supporting affidavits filed in court it is alleged by one dealer that she suffered a loss of over R2 million as a result of refusal by all three Respondents to assist her after she had surrendered her stock of firearms. In another affidavit a lady of over 70 years of age tells of how she was treated with disdain and discourtesy, and repeatedly told she was not entitled to compensation, when she surrendered one firearm at her local police station.

JASA lays the blame for this appalling state of affairs squarely on the shoulders of the Minister  (at the time Minister Nqakula)  and SAPS Commissioner ( Jackie Selebi) who, on 8 June 2005 and 12 October 2005 respectively, stated in Parliament, in defiance of the Act,  that no compensation would be payable to those surrendering firearms.

Parliament clearly intended that s.137 of the Act should encourage the surrender of firearms, an aim which JASA wholly supports in our crime-ridden society.

JASA's Heads of Argument have now been added to the Affidavits and the Notice of Motion filed in the suit and may be found on our website www.jasa.za.net

JASA

Upholding Justice in the Public Square

John Smyth QC
Justice Alliance of South Africa (JASA)
1 Ruskin Road, Bergvliet
Cape Town, 7945

Tel/Fax +27 21 713 3259
Alt Fax  0866727474
Mobile  083 653 8804

www.jasa.za.net
www.jjs.za.net

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Read today’s court ruling below regarding Compensation for firearms handed in by members of the public from 2004.

Sincerely

Andre Pretorius

ITA

Court rules on gun compensation

Cape Town - The Western Cape High Court has given Police Minister Nathi Mthethwa 90 days to draw up guidelines for compensation for firearms surrendered under the gun control law.

The ruling could result in payouts totalling millions of rands for gunowners who have handed in weapons since 2004.

The order was handed down on Monday by Acting Judge President Jeanette Traverso, who at the same time slapped down an attempt by Mthethwa to distance himself from the bungling of his predecessor.

It followed an application by the Justice Alliance of SA (Jasa) and the False Bay Gun Club.

Firearms Control Act

They argued that the Firearms Control Act, which came into force in 2004, required the minister to come up with guidelines on the amount of compensation to be paid for guns surrendered or forfeited to the State.

By failing to do so, Mthethwa and his predecessor Charles Nqakula had acted in breach of the "ethos of acountability" in the Constitution.

Though the two sides agreed before Monday's hearing on a draft order of just three clauses, Mthethwa apparently developed a change of heart at the last minute.

When the matter came before Traverso, Advocate Kosie Olivier said Mthethwa, his client, would not oppose clauses ordering him to draw up the guidelines within 90 days, and to pay the applicants' costs.

However told Traverso that the minister did oppose the inclusion of the first clause - a "declarator" that the failure to establish the guidelines was unlawful and unconstitutional.

Request for postponement

Olivier asked that the matter be postponed so more affidavits could be filed to explain Mthethwa's involvement.

"But why?" demanded an incredulous Traverso.

Olivier said his instructions were that Mthethwa took office only after the April 2009 general election, and had been unaware of the guidelines issue.

"So what?" demanded Traverso. "This is not a personal application against someone, it's ex officio... Argue the law to me, don't tell me about your instructions."

She said that in his written heads of argument, Olivier had in fact conceded that the failure to draw up guidelines was unconstitutional.

Jasa's lead advocate, Peter Hodes, said Mthethwa was seeking to absolve himself from blame.

"He wants to give what is in rugby parlance called a hospital pass the previous minister," he said.

Traverso refused the postponement, and made the full order.

Payout could total millions

Jasa spokesperson John Smyth said the ruling would lead to the payout of what could total millions of rands.

"The order says what has gone on for the last five years is unlawful and unconstitutional," he said.

"The state has received a very robust slap on the wrist from her ladyship."

Jasa would now wait for the guidelines to be issued.

If they were not satisfactory, this would not be the end of the matter, he said.

If they were unchallenged, firearms control officers would have to deal with a huge compensation backlog.

In 2005, Nqakula told Parliament that no compensation would be paid to gun owners who handed in their weapons.

The same year, then-national police commissioner Jackie Selebi told MPs that there was no budget for compensation, and that "you can't be paid for doing away with an evil thing".

- SAPA

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